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Latest AIJAC Submission On Submission by the Australia/Israel & Jewish Affairs Council (AIJAC) to the Australian Federal Parliamentary Joint Committee on Human Rights Inquiry into Freedom of Speech in Australia December 9, 2016 Executive Summary This document is the submission by the Australia/Israel & Jewish Affairs Council (AIJAC) to the Australian Federal Parliamentary Joint Committee on Human Rights Inquiry into Freedom of Speech in Australia – including into the operation of Part IIA of the Racial Discrimination Act 1975 (Cth) (RDA) (including ss. 18C and 18D) and the complaints-handling procedures of the Australian Human Rights Commission (AHRC) under this section. In it, it is argued: • That, while freedom of expression is both a vital civil right and an essential precondition of liberal democracy, it is nowhere in the world completely unfettered and absolute, such that it must supersede all other rights, and override all other forms of public interest. Indeed, we identify at least nine broad ways, besides racial vilification, in which state or federal legislation already limit, prohibit or render unlawful expression in many forms and contexts. • That, since the passage of Part IIA of the Racial Discrimination Act 1975 in 1995, we have witnessed both more circumspection and less harm by openly racist groups in Australia, and a series of legal and societal achievements which have clearly benefitted the well-being of minority groups in Australian, including the Jewish community, as well as the social cohesion of Australian society as a whole. • That not only is the availability of legal redress against extreme or pervasive racial vilification essential to maintaining the right of Australians to live their lives free from harassment and intimidation, it actually helps serve to protect the right to freedom of expression for members of vulnerable minority groups. • That arguments by some individuals and groups that the wording of 18C - and specifically the inclusion of the words “offend” and “insult” - creates a subjective “hurt feelings” test which is allegedly uniquely threatening to the right to freedom of speech are simply wrong as a matter 1 of law. Furthermore, this language is similar to that used across considerable existing state and federal legislation and the practice across many liberal democracies around the world. • That claims that 18C is stifling Australian public debate around major issues of public concern are simply incorrect – with those who make this claim unable to offer a single reasonable and valid example of a case where the law made it impossible for exponents to express a sincere viewpoint in any significant public debate. The examples that are typically offered, we argue, actually demonstrate the opposite. • That while there have been controversies – and apparent genuine mistakes - with regard to the process of administering 18C by the Australian Human Rights Commission in a small number of recent cases, we argue that these cases do not indicate any problems with the wording of 18C per se. Moreover, there is no reason to believe that this law is any more burdensome on the parties than other similar laws – and in fact the opposite may be the case. Nonetheless, AIJAC acknowledges that improvements to the process of administering 18C might be desirable, and suggests minor reform measures which might achieve some streamlining of the law’s administration. About AIJAC AIJAC is a private organisation, established in 1973, which promotes informed discussion and debate about matters of special concern for the Australian Jewish community - to government, politicians, media and other community groups and organisations. We thank the Parliamentary Committee for the opportunity to comment on these issues. AIJAC has expert knowledge on the issue of racial vilification and the operation of Part IIA of the Racial Discrimination Act.1 Jeremy Jones AM, Director of International and of Community Affairs at AIJAC, has been involved in matters which were adjudicated by the Federal Court (Jones v Scully, Jones v Toben, Jones v One Nation, Jones v Bible Believers), settled through the process of conciliation (Jones and El Telegraph) and one which was withdrawn due to bureaucratic delays. This experience includes participation in 1 For more information on AIJAC’s knowledge on these issues, the appendices includes a description of many of the cases which Jeremy Jones has been involved with, as well as the following articles: Mark Leibler, “Prompt action could have avoided threat to Australian race law”, Australian, Nov. 14; Dr. Colin Rubenstein, “Free speech warriors are missing the point about 18C”, Australian, Sept. 1, 2016; Sharyn Mittelman, “ Paris no excuse for revisiting 18C”, Australian, Jan. 21, 2016; Jeremy Jones “Don’t strip away our rights”, Australia/Israel Review, May 2014; Jeremy Jones “Let’s preserve our best legal weapon against racism”, Australian, March 18, 2014; and Jeremy Jones, “Incidents of violence and intimidation in Australia, 1 October 2012-30 September 2013”, Executive Council of Australian Jewry, November 2013. 2 lodging complaints; winning a Federal Court challenge against an Australian Human Rights Commission (AHRC) ruling that he did not have standing in one matter; participating in conciliations prior to matters going to court, with varying outcomes; and participating in Federal Court hearings, including consideration of complaints, appeals and a matter of contempt of court by a person who did not comply with an 18C judgement. In addition, he has authored a number of authoritative studies of antisemitism in Australia. Dr. Colin Rubenstein, AM, the long-serving Executive Director of AIJAC, is a former senior lecturer in politics at Monash University for many years, served as a member of the National Multicultural Advisory Council (1997-1999) and the Council for Multicultural Australia (2000-2006) and helped develop and formulate the policy documents underlying the development of Australian multiculturalism as a consultant to the Australian Institute of Multicultural Affairs, January 1980- February 1985. Both Dr. Rubenstein and Mr. Jones were involved in the debate and discussion which led up to the introduction of Part IIA of the RDA in 1995. Freedom of Speech and Expression in Australia Article 19 of the International Covenant on Civil and Political Rights (ICCPR), states, that, (1) “Everyone shall have the right to hold opinions without interference” and that, (2) “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” Freedom of expression is also an essential prerequisite for modern liberal democracy. AIJAC believes, together with most Australians, that it should be preserved and strengthened in Australia. However, freedom of expression is not an absolute right and has not been enacted as such an absolute right, above all restrictions or limitations, in any modern state. Under the ICCPR, freedom of speech is limited by Article 19 (3a) respect of the rights or reputations of others; (3b) for the protection of national security or of public order, or of public health or morals, as well as Article 20 which (1) prohibits propaganda for war, and (2) states that “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” 3 In the case of The Jewish Community of Oslo et al. v. Norway, Communication No.30/2003, the Committee on the Elimination of Racial Discrimination determined in an opinion that protections against racist, hate and "manifestly offensive" speech are not incompatible with established protections to freedom of expression. The opinion stated (at 10.5): "...the Committee's own General recommendation No 15 clearly states that the prohibition of all ideas based upon racial superiority or hatred is compatible with the right to freedom of opinion and expression. The Committee notes that the 'due regard' clause relates generally to all principles embodied in the Universal Declaration of Human Rights, not only freedom of speech. Thus, to give the right to freedom of speech a more limited role in the context of article 4 does not deprive the due regard clause of significant meaning, all the more so since all international instruments that guarantee freedom of expression provide for the possibility, under certain circumstances, of limiting the exercise of this right. The Committee concludes that the statements of Mr. Sjolie, given that they were of exceptionally/manifestly offensive character, are not protected by the due regard clause." Australian Commonwealth and State laws already limit, prohibit or render unlawful expression in many forms and contexts, including2: 1. Criminal laws, such as Sedition laws, and the various laws outlawing treason, urging violence or encouraging terrorism (sections 80.1AA, s 80.2, s 80.2A, s 80.2B, s 80.2C of the Criminal Code) or s 471.12, which prohibits using the postal system to menace, harass or cause offence, as well as laws relating to creating false documents, child pornography, and counselling suicide. 2. Secrecy Laws, - the Australian Law Review Council (ALRC) has identified 506 secrecy provisions in 176 pieces of primary and subordinate legislation, with criminal penalties in many of them, and not only for matters related to ASIO, counter-terrorism and
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